United States of America v. SUN HWANG, AKA Sunny

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SUN HWANG, AKA Sunny,
Defendant - Appellant.
No. 15-16334
D.C. No. 1:15-cv-00072-DKW-BMK
1:13-cr-01065-DKW-12
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Argued and Submitted June 14, 2016
Honolulu, Hawaii
Before: THOMAS, Chief Judge and CALLAHAN and MURGUIA, Circuit Judges.
Sun Hwang appeals the district court’s denial of her motion for relief under
28 U.S.C. § 2255. We reverse.
We review a district court’s denial of relief under 28 U.S.C. § 2255 de novo.
United States v. Swisher, 811 F.3d 299, 306 (9th Cir. 2016) (en banc).
FILED
AUG 04 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Hwang pled guilty to aiding and abetting an illegal gambling enterprise in
violation of 18 U.S.C. § 1955. Before Hwang pled guilty, her lawyer contacted
two immigration attorneys to determine the immigration consequences of a guilty
plea. One attorney told Hwang’s lawyer that a guilty plea under § 1955 would
invariably result in removal, with no option for discretionary relief. The other
attorney believed that Hwang would be eligible for discretionary relief. Hwang’s
lawyer conveyed both viewpoints to Hwang, but he did not say which viewpoint he
believed to be correct. Rather, in his words, he “never gave Ms. Hwang any
immigration advice in regard to her case.” Hwang pled guilty without a plea
agreement and was later sentenced to three years of probation.
After sentencing, the Department of Homeland Security initiated removal
proceedings. An immigration judge determined that Hwang had been convicted of
an aggravated felony, requiring removal and rendering Hwang ineligible for
discretionary relief. Hwang brought a motion under 28 U.S.C. § 2255 to set aside
her guilty plea, alleging ineffective assistance of counsel under Padilla v.
Kentucky, 559 U.S. 356 (2010). She alleges that she would not have pled guilty if
her lawyer had correctly advised her of the immigration consequences of doing so.
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I
“Before deciding whether to plead guilty, a defendant is entitled to ‘the
effective assistance of competent counsel.’” Padilla, 559 U.S. at 364 (quoting
McMann v. Richardson, 397 U.S. 759, 771 (1970)). To succeed on an ineffective
assistance of counsel claim, “the defendant must show that counsel’s
representation fell below an objective standard of reasonableness.” Strickland v.
Washington, 466 U.S. 668, 689 (1984). In addition, “[t]he defendant must show
that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id. at 694.
When a criminal defendant is not a citizen, attorneys have a duty to inform
their clients of the immigration consequences of a guilty plea. Padilla, 559 U.S. at
368. To comply with the Sixth Amendment, attorneys must “advise a noncitizen
client that pending criminal charges may carry a risk of adverse immigration
consequences” when the immigration “consequences of a particular plea are
unclear or uncertain.” Id. at 369. “But when the deportation consequence is truly
clear . . . the duty to give correct advice is equally clear.” Id.
Here, the immigration consequences of the guilty plea were clear. A
conviction under to 8 U.S.C. § 1955 is defined as an “aggravated felony” pursuant
to 8 U.S.C. § 1101(a)(43)(J). An alien convicted of an aggravated felony is
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“conclusively presumed” to be removable under immigration law. 8 U.S.C.
§ 1228(c). A noncitizen convicted of an aggravated felony is not eligible for
cancellation of removal. 8 U.S.C. § 1229b(a)(3). Thus, under Padilla, Hwang’s
attorney was obligated to provide her with correct advice regarding the
immigration consequences of her plea. 559 U.S. at 368-69.
Because Hwang was not informed of the immigration consequences of her
plea when those consequences were clear, Hwang did not receive constitutionally
effective assistance of counsel under the requirements set forth in Padilla. As in
Padilla, “the terms of the relevant immigration statute[s] are succinct, clear, and
explicit in defining the removal consequence for [Hwang]’s conviction.” 559 U.S.
at 368. “The consequences of [Hwang’s] plea could easily be determined from
reading the removal statute, [her] deportation was presumptively mandatory, and
[her] counsel’s advice was” not correct. Id. at 369. Therefore, Hwang has
demonstrated that her counsel’s performance was objectively unreasonable. See
Strickland, 466 U.S. at 687-88.
We reject the claim that Hwang’s attorney provided effective assistance by
furnishing Hwang with conflicting advice, some which was correct. When the
immigration consequences of a plea are truly clear, an attorney does not satisfy
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Padilla by providing the client with a series of conflicting propositions–some true,
others not. Conflicting advice is not correct advice.
II
Hwang has also established that she was prejudiced by her attorney’s
incorrect advice. Hwang explains that, had she been made aware of the deportation
consequences of a guilty plea, she would not have pled guilty. Hwang explains
that she placed a significant emphasis on the immigration consequences of a
conviction: she asked her attorney repeatedly about the immigration consequences
of her case, and she sought further clarity on the effect of a guilty plea by seeking
the advice of immigration specialists. Hwang says that if her attorney had
provided correct advice, she would not have pled guilty. Under our precedent in
United States v. Kwan, this is sufficient to establish prejudice under the second
prong of Strickland. 407 F.3d 1005, 1017-18 (9th Cir. 2005) (determining there
was Strickland prejudice where a noncitizen defendant demonstrated that he placed
a “particular emphasis” on the immigration consequences of a plea), abrogated on
other grounds by Padilla, 559 U.S. 356; see United States v. Chan, 792 F.3d 1151,
1154 (9th Cir. 2015) (concluding that Kwan survives Padilla in relevant part).
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For the foregoing reasons, we conclude that Hwang has established her
claim of ineffective assistance of counsel under Strickland. Accordingly, we
vacate the conviction and remand to the district court.
REVERSED AND REMANDED.
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United States v. Sun Hwang, No. 15-16334
CALLAHAN, Circuit Judge, dissenting:
I respectfully dissent. I do not read Padilla v. Kentucky, 559 U.S. 356
(2010), as altering the two-prong standard for measuring ineffective assistance of
counsel set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, the
defendant must show that counsel’s performance was deficient . . . and [s]econd,
the defendant must show that the deficient performance prejudiced the defense.”
Id. at 686.
Hwang’s attorney, not being well-versed in immigration law, sought and
obtained the advice of not one, but two immigration lawyers, and passed their
advice on to Hwang. It is not clear what more counsel should have done.
The Supreme Court instructs that “[j]udical scrutiny of counsel’s
performance must be highly deferential,” we must make “every effort be made to
eliminate the distorting effects of hindsight,” and “judge the reasonableness of
counsel’s challenged conduct on the facts of the particular case, viewed as of the
time of counsel’s conduct.” Id. at 689–90. Properly viewed, Hwang has not
shown that her attorney’s performance was deficient.
Certainly, the Supreme Court in Padilla stated that “when the deportation
consequence is truly clear, as it was in this case, the duty to give correct advice is
equally clear.” 559 U.S. at 369. But I do not read this as creating the equivalent of
FILED
AUG 04 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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strict liability whenever, in hindsight, the deportation consequences are “clear.”
Rather, we must continue to apply the approach set forth in Strickland. We must
first determine whether counsel’s performance was deficient. The clarity of the
immigration consequences is obviously a factor in that determination, but it is
neither inherently compelling nor a substitute for the determination of deficiency.
Here, Hwang’s counsel did not leave her without information. He made sure she
understood that one immigration attorney thought that there were adverse
immigration consequences from pleading guilty, but that another thought she might
be eligible for discretionary relief.
Hwang’s counsel should be complimented for his efforts to provide her with
information from alleged experts in immigration law. The subsequent
determinations that one immigration attorney’s advice was wrong and that the
adverse immigration consequences now seem “clear” do not, in my opinion, render
the criminal defense attorney’s performance deficient. I would affirm the district
court.

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